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In Bell v. Taylor, the Seventh Circuit homes in on the photographer plaintiff’s dearth of damages evidence in his copyright suit about two photographs he took of the Indianapolis skyline.

A copyright owner can recover actual damages suffered as a result of infringement and any profits accruing to the infringer. To establish an infringer’s profits, the plaintiff must show only the infringer’s gross revenue. The infringer is then required to prove his “deductible expenses and elements of profit attributable to factors other than the copyrighted work.” 17 U.S.C. § 504(b).

Actual damages in the copyright context usually mean loss in fair market value of the infringed work (here, the two photos), measured by profits lost by the copyright holder due to the infringement. Evidence of prior sales of the infringed work(s) can satisfy the plaintiff’s actual damages burden but his subjective belief as to the fair market value of a photo isn’t enough to prove damages.

The plaintiff failed to prove actual damages since all he offered was his unsupported subjective belief of what the photos were worth. He was unable to attribute any lost profits to himself or any profits gained by the infringing defendants. The plaintiff also couldn’t show that any of the infringing defendants attracted more clients by using the plaintiff’s skyscraper photos.

Afterwords:

While the plaintiff was able to establish ownership in the copyrighted photos as well as infringement (he unquestionably took the photos and copyrighted them and all defendants admitted using one or both of them), the lack of damages evidence doomed his claims. The plaintiff’s unadorned opinion of the photos’ monetary value was insufficient to meet his copyright infringement damages burden.

To survive summary judgment, the plaintiff likely would have had to proven that the defendants gained increased web traffic as a direct result of using the photos and that the increased traffic translated into measurable profits for the defendants. Since the plaintiff couldn’t do this, he couldn’t establish copyright infringement damages to the extent his claims would beat a summary judgment motion.